Davis v. Vories

• Citation: 42 S.W. 707,141 Mo. 234
• Parties: Davis et al., Appellants, v. Vories
• Decision Date: 03 November 1897
• Court: United States State Supreme Court of Missouri

42 S.W. 707

141 Mo. 234

Davis et al., Appellants, v. Vories

Supreme Court of Missouri, First Division

November 3, 1897

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Reversed and remanded.

Casteel & Haynes for appellant.

(1) The deposition of James Leach was irrelevant and injected into the case a collateral issue, which was calculated to mislead and prejudice the jury. The evidence must correspond with the allegations, and be confined to the points in issue. 1 Greenl. on Ev. [14 Ed.], sec. 52; Best on Evidence, sec. 644; 7 Am. and Eng. Ency. of Law, p. 58, and notes; Hubbard v Railroad, 39 Me. 506; Lewis v. Smith, 107 Mass 334; Cutler v. Howe, 122 Mass. 541. (2) Under the pleadings and evidence the court should have directed a finding for plaintiffs, as prayed for in their first instruction. To make false representations actionable, either civilly or criminally, the representation must relate to some past or existing fact. Cooley on Torts [1 Ed.], 474; 8 Am. and Eng. Ency. of Law, 636, and notes; Parker v Marquis, 64 Mo. 38; Saunders v. McClintock, 46 Mo.App. 216; State v. Evers, 49 Mo. 542. (3) Root had the right and power to assign to the defendant the exclusive right to sell the book called "Footprints of Time," and therefore there was a consideration for said notes. Stephens v. Cody, 14 How. U.S. 530; R. S. U.S. sec. 4952.

S. G. Loring and Hall & Pike for respondent.

(1) The depositon of James Leach was clearly admissible. The deposition shows that Leach was swindled by Root soon after Root obtained the six obligations from respondent. It was admissible for the purpose of showing the intent upon the part of Root and his agents to defraud. State v. Myers, 82 Mo. 569; State v. Bayne, 88 Mo. 609; 1 Greenl. on Ev., sec. 53; Wharton on Ev. [2d Ed.], sec. 33. (2) The court committed no error in refusing the first instruction prayed for by plaintiffs. E. C. Davis, if she received them at all, received said obligations from her husband, Asa G. Davis, long after their maturity, and she stood in exactly the same condition as if the suit had been prosecuted in the name of her husband. Turner v. Hoyle, 95 Mo. 345; Johnson v. McMurry, 72 Mo. 282.

OPINION

Brace, J.

This is an action on six promissory notes dated the twenty-fourth day of September, 1879, amounting in the aggregate to $ 1,400, all payable within one year and bearing ten per cent interest from date; alleged in the petition to have been executed by the defendant to one R. T. Root, and by him assigned to the plaintiff A. G. Davis on the eleventh day of November, 1879, and by him assigned to his wife, the co-plaintiff Elizabeth C. Davis, on the fifth day of June, 1884. The answer of the defendant admits the execution of the notes, and pleads as a defense failure of consideration, and that the same were procured by the fraudulent representations of the said Root to the defendant, and that if they were assigned as alleged, they were so assigned in consideration of the same fraudulent scheme set out in detail in the answer, and in mala fide to deprive him of his defense thereto. It appears from so much of the evidence as is set out in the abstract that the only consideration the defendant received for the notes sued on was an instrument of writing, executed in duplicate, which is as follows:

"Territory Deed.

"Whereas, R. T. Root of Burlington, Iowa (in compliance with an act of Congress) did enter for copyright March 30th, 1874, and did obtain the copyright of a book entitled 'The Footprints of Time,' and whereas, Oliver H. P. Vories of Santa Rosa, Mo., represents that having personally examined, and thus become well satisfied with the merits and value of said 'Footprints of Time" now desires to obtain, and makes this application to purchase from R. T. Root the necessary supply of books, and the exclusive right to sell said 'Footprints of Time' upon the terms herein specified within the uncanvassed parts of the following described territory, viz., a territory containing a population of fifty thousand inhabitants, which said Vories may select in any territory not otherwise arranged for, provided that he takes not less than a county in a place.

"Now therefore this instrument witnesseth: That for and in consideration of the sum of fifteen hundred dollars, and for the further consideration that the said Oliver H. P. Vories agrees that he will in person, or by his agent or agents, promptly enter upon, and vigorously prosecute the work of canvassing each portion of the above territory by school districts and by townships, and will sell the aforesaid book in the regular way by subscription, and in that way only, I, R. T. Root, by these presents, do grant unto the said Oliver H. P. Vories the exclusive right to sell the said 'Footprints of Time,' from the date hereof, within the above described territory, but not elsewhere, neither in any other territory whatsoever, directly or indirectly, nor to sell said book in the territory hereby conveyed to be resold in any other territory. And for and during the time necessary to make one thorough canvass of the territory hereby conveyed, but not to exceed three years from July 1st, 1878, and for such further time as the parties hereto may mutually agree upon, the said Oliver H. P. Vories is hereby authorized to draw on me for books sufficient to supply the above described territory, upon the conditions above mentioned and at the following prices: In cloth binding, one dollar and twenty-five cents each; and in library style of binding at one dollar and seventy cents each; the books to be delivered to the said Oliver H. P. Vories at the bindery or at the place of manufacture.

"Witness my hand this 24th day of September, 1879.

"R. T. Root."

"Received, this 24th day of September, A. D. 1879, from R. T. Root, a territory deed, of which the above is a full, perfect and exact copy, which I hereby accept.

"Oliver H. P. Vories.

"John M'Kitrick, Witness."

The evidence for the defendant, except the deposition of James Leach, is not set out in the abstract, but it is therein stated that "defendant, to sustain the issues on his part introduced evidence tending to support the issues tendered in his answer, and tending to prove the facts predicated in the instructions given on his motion."

The plaintiff assigns for error the giving of the defendant's first and fourth instructions; the refusal to give the plaintiff's first and seventh; the modification by the court of his third and fourth instructions; and the admission of the deposition of Leach. The first instruction given for the defendant is as follows:

"1. The court instructs the jury that in law Root, the payee in the notes in suit, had no power to assign to the defendant the exclusive right to sell the book in evidence, to wit, 'The Footprints of Time,' and that there was therefore a total failure of consideration for said notes."

I. It is not seen how this instruction for the defendant can be maintained. Copyright in the United States is the "exclusive right of printing or otherwise multiplying copies of a published literary work, and publishing and vending the same, with the right of preventing all others from doing so." 4 Am. and Eng. Ency. of Law, 147; R. S U.S. sec. 4952. It is not disputed that Root was the owner of the copyright of the book in question. As such...